Freedom to provide services – Restrictions – National legislation on the reimbursement of medical expenses incurred in another Member State – Unscheduled hospital treatment – Regulation No 1408/71
(Art.49 EC; Council Regulation No 1408/71, Art. 22(1)(a)(i))
A Member State that refuses persons insured under the national health scheme of that State the supplementary reimbursement of medical expenses they have incurred in another Member State for hospital treatment received in accordance with Article 22(1)(a)(i) of Regulation No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Regulation No 118/97, and as subsequently amended by Regulation No 1992/2006, in so far as the level of cover applicable in the Member State where the treatment is administered is lower than that provided for under the legislation of the Member State of affiliation, does not fail to fulfil its obligations under Article 49 EC.
The possibility that persons insured under the national health system of a Member State might be induced to return to that Member State early in order to receive hospital treatment there which has been made necessary by a deterioration in their health during a temporary stay in another Member State, or to cancel a trip to another Member State – for tourism or study, for example – because, outside particular limited situations, they cannot count on the competent institution’s making a complementary contribution if the cost of equivalent treatment in the Member State of affiliation exceeds the level of cover applicable in that other Member State, appears too uncertain and indirect. Accordingly, the contested legislation cannot, for it is couched in general terms, be regarded as being such as to restrict the freedom to supply hospital treatment, tourism or educational services.
Furthermore, cases in which unscheduled hospital treatment provided to an insured person during a temporary stay in another Member State bring about, as a consequence of the application of the legislation of the Member State of stay, a heavier financial burden for the Member State of affiliation than if that treatment had been provided in one of its own establishments, are deemed to be counterbalanced overall by cases in which, on the contrary, application of the legislation of the Member State of stay leads the Member State of affiliation to incur lower costs for the hospital treatment in question than those which would have resulted from the application of its own legislation.
(see paras 72, 78, 80)